Lessons Maybe Learned—A Commentary by Linda Greenhouse ’78 MSL

The following commentary was posted on newsyorktimes.com on September 7, 2011.

Lessons Maybe Learned By Linda Greenhouse ’78 MSL

The Council on Foreign Relations asked its fellows for a page’s worth of thoughts on lessons learned since 9/11. The result was a series of 10 posts on the Council’s Web site late last month on such topics as immigration policy, counterterrorism, intelligence reform, unconventional warfare. There was nothing about the courts.

At first I was surprised, thinking that this was a glaring omission from in an otherwise smart set of essays. On reflection, though, it’s understandable. The judicial legacy of 9/11 is a fuzzy one, and the judicial profile has sunk to near invisibility. It is more than three years since the Supreme Court had anything to say about Guantanamo, not that the justices haven’t been asked.

The lower federal courts in the District of Columbia, reviewing individual detainees’ requests for habeas corpus, have been churning out opinions so fact-bound and fine-grained that reading one is like stumbling into the middle of a conversation among strangers without beginning or end. Elements of the war on terror that strike at least some people as problematic, such as targeted assassinations, seem to lie beyond the judicial ken. And of course we have Congress to thank for shutting the federal courthouse doors entirely for the trials the Obama administration had planned to conduct of the highest profile detainees.

So it’s not terribly surprising that “courts” would not leap to the collective mind of the foreign policy crowd. But the 10th anniversary shouldn’t be allowed to pass without reflecting on the role that federal judges have played during this decade. One way of doing that is to consider the counter-factual: what if the federal courts, particularly the Supreme Court, had been missing in action? Suppose the justices had agreed with the Bush administration back in 2004 that the federal courts had no business at Guantanamo Bay, instead of ruling that because the Navy base, while on Cuban soil, was functionally part of the United States, the federal courts had jurisdiction to hear the detainees’ challenges to being held there indefinitely and without charges? Suppose the court in 2006 had rubber-stamped rather than invalidated President Bush’s unilateral establishment of military commissions or had acquiesced when Congress responded to that ruling by circling back, in a statute the court eventually declared unconstitutional, to strip the federal courts of jurisdiction?

I don’t mean to oversell my counter-factual or wax unduly romantic about the performance of the Supreme Court. The last decision, Boumediene v. Bush, in 2008, was a 5-to-4 snarl fest, with Justice Antonin Scalia warning in apocalyptic dissent that permitting federal judges to grant habeas corpus “will almost certainly cause more Americans to be killed.” No wonder the fragile majority has been slow to jump back in. And it’s hard to demonstrate a practical impact from the Supreme Court’s intervention. True, the 2004 decision in Rasul v. Bush caused the Bush administration to set up a system of “combatant status review tribunals” in which detainees could theoretically contest their designation as enemy combatants. But without access either to lawyers or to any evidence the government didn’t care to provide, the detainees’ success rate in this forum was, predictably, not high. Hundreds of Guantanamo detainees have been released, but nearly all as a matter of executive discretion rather than court order. Military commissions are gearing up again. Certainly most Americans would be hard-pressed to believe that the court decisions have made a difference.

And yet I believe deeply that they have. To think back to the fall of 2003 is to remember the extravagant claims of unilateral authority emanating from the White House. The conventional wisdom inside the Beltway was that the lawyers who were seeking the Supreme Court’s attention were on a fool’s errand. Both the World War II-era precedents that the administration’s lawyers relied on, as well as a gung-ho public mood not yet sobered by the images from Abu Ghraib, seemed to cut against the notion that a basically conservative Supreme Court would not defer to the Commander in Chief in wartime.

The chief justice, William H. Rehnquist, had recently published a book of Supreme Court history about the constraints that war places on civil liberties. Yet, in the 2004 case of Hamdi v. Rumsfeld, in which the court ruled that the government could not continue to hold an American-born Saudi, Yaser Esam Hamdi, without some measure of due process, Chief Justice Rehnquist signed Justice Sandra Day O’Connor’s opinion that declared: “A state of war is not a blank check for the president when it comes to the rights of the nation’s citizens.”

Clearly, the court felt motivated — impelled — to stand up for the separation of powers because someone had to. It doesn’t matter that its decisions were institutional rather than civil libertarian. At a time when the fabric of the rule of law was stretched thin – further than we then realized – the court, to its credit, stuck to business. It called both other branches to account. It kept the fabric from fraying further. It merits a place in any 9/11 anniversary reminiscence.

This is a column about judges, not really about 9/11, so I’m not veering off point to make a further observation that at first glance will seem unrelated. The law of Guantanamo and the law of abortion obviously have nothing in common. But there is an emerging dynamic to the judicial responses to the spate of restrictive new anti-abortion laws coming from the state legislatures that reminds me of the Supreme Court’s initial involvement in Guantanamo.

It is almost 20 years since the court, in Planned Parenthood v. Casey, opened the door to greater regulation of abortion, declaring that “the state has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.” Since that time, as abortion opponents pursued an incremental strategy to increase the cost and onus of the procedure, waiting periods and intrusive “informed consent” requirements have become the norm in much of the country, upheld by judges who found that whatever burdens the regulations imposed were not so “undue” as to be unconstitutional.

Now that is starting to change as the opponents and their legislative allies become bolder in imposing regulations that strain credulity. For example, the South Dakota Legislature passed a law requiring doctors to tell patients that abortion is known to increase the risk of suicide. That isn’t true, as the United States Court of Appeals for the Eighth Circuit observed last week in declaring that this provision of a broader informed-consent law violated the constitutional rights of not only of women but also of doctors, who the court said had a First Amendment right not to be compelled to engage in “untruthful and misleading speech.”

Also last week, a federal district judge in Austin, Sam Sparks, similarly invoked the First Amendment when he blocked enforcement of major portions of a new Texas law requiring doctors to provide and describe sonogram images of the fetus and to have their patients listen to the fetal heartbeat. Women could “opt out” of hearing the description only if they certified in writing that their pregnancy resulted from rape or incest, with the certification form to be kept in their medical records for at least seven years.

“It is difficult,” Judge Sparks wrote, “to avoid the troubling conclusion that the Texas Legislature either wants to permanently brand women who choose to get abortions, or views these certifications as potential evidence to be used against physicians and women.” The law, he continued, “compels physicians to advance an ideological agenda with which they may not agree, regardless of any medical necessity, and irrespective of whether the pregnant woman wishes to listen.”

The connection I see between these rulings and the Guantanamo cases is that both represent the response of judges who fear that other actors in the political system are driving events dangerously out of balance. Judge Sparks, a 72-year-old appointee of the first President Bush, was clearly pushed to the limit of his patience as the Texas case proceeded. The sponsors of the legislation had filed a motion to intervene in the case in order to provide “assistance” to the state in defending the law. “Much of their ‘assistance’ is nothing more than thinly-veiled rhetoric,” Judge Sparks wrote in denying the motion. He added: “This is a federal lawsuit about the constitutionality of a statute, not a soapbox for politicians or a sounding board for public opinion.”

Among my feelings about the past 10 years is gratitude for a system in which judges, and justices, can and do speak truth to power.